Health Care Reform: A Bridge Too Far

The individual mandate in President Barack Obama's health care reform was a lightning rod for criticism long before it became law. As far back as the 2008 campaign, the idea provoked sharp complaints.

Here's one from a Democratic debate in South Carolina: "A mandate means that in some fashion, everybody will be forced to buy health insurance. ... But I believe the problem is not that folks are trying to avoid getting health care. The problem is they can't afford it. And that's why my plan emphasizes lowering costs."

But it wasn't Hillary Clinton or John Edwards or Christopher Dodd who said that. It was Obama. He even ran ads warning that Clinton's plan "forces everyone to buy insurance, even if you can't afford it, and you pay a penalty if you don't."

Since then, he has come around to her view that a little coercion -- well, more than a little -- is not such a bad thing when it comes to overhauling the health insurance system. But now he has to convince the federal judiciary, which has been harder than persuading himself.

On Monday, a federal district court in Florida ruled the mandate unconstitutional and invalidated the entire law because it could not function without this requirement. Judge Roger Vinson based this verdict on the unfamiliar proposition that there are limits to how far Congress can go in bossing individual citizens around.

Not everyone shares that view. In an interview with The Washington Post, an anonymous White House official mocked the ruling as, "to put it charitably, very unconventional." Walter Dellinger, who was solicitor general under President Bill Clinton, found it "truly astonishing" to suggest that "Congress lacks the authority to regulate" health insurance.

But no one said Congress can't regulate the industry. The judge merely said Congress can't force Americans to purchase a specific product from a private business.

It's one thing for the government to set rules for people who have chosen to engage in economic activity. It's another to dictate to people who have chosen not to.

"It would be a radical departure from existing case law," wrote Vinson, "to hold that Congress can regulate inactivity under the Commerce Clause." Before the law was passed, even a neutral arbiter like the Congressional Budget Office said the mandate was "unprecedented."

Unprecedented it is -- and, if allowed, an important precedent for future lawmakers. Vinson noted that Erwin Chemerinsky, a prominent liberal law professor at the University of California at Irvine, has asserted that Congress could not only force Americans to buy health insurance but also to purchase cars -- say, to bolster a vital industry and preserve jobs during a recession.